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Brexit FAQs

EU nationals and Brexit – FAQs

These frequently asked questions and answers offer general information for Prospect members who are EU nationals. They are only for general guidance and should not be taken as definitive advice. Members should seek individual specialist legal advice to match their personal circumstances.

We start with looking at the current position for EU nationals in the UK. These rights will remain up to the final date of exit from the EU. We then look at what we know of the latest position and the Government’s intentions.

These FAQs will be updated as we learn more of the Government’s intentions.

Special thanks go to Nicola Braganza, of Garden Court Chambers, a barrister specialising in immigration and equality law, for her advice and assistance with our work on the impact of Brexit for EU nationals. See Prospect’s video of her presentation to Prospect reps on 25 March 2017


Freedom of movement in the EU


Who does the concept of freedom of movement across the EU apply to?

It applies to EU nationals (citizens of; Austria, Belgium, Bulgaria, Croatia (with registration certificate), Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, & the UK) and to those in the European Economic Area (Iceland , Lichtenstein, and Norway) and Switzerland.


Who has the right to free movement?

Any EU/EEA national can travel and reside in member states for up to three months (subject to having a valid identity card or passport).


And what about for longer periods?

All those EU/EEA nationals who are workers, job seekers, students, self-employed, and those who are self-sufficient, have the right to reside in the UK.

People who are in these categories are known as a ‘qualified person’ and they are exercising their European Treaty rights to move around Europe. So for example workers and students from other EU states can live and work or study in the UK without restriction and if their status continues to be within this group then they can apply for permanent residency in the UK after five years (see below).


Who is a worker?

There is no absolute definition, but the person must be engaged in ‘genuine and effective work’.


What if there are gaps in the employment?

You retain worker status if you are temporarily unable to work, for example through illness or accident. Also it is retained during periods of leave, such as for maternity, family, or sickness. After six months unemployment you can continue to retain the right to reside if you can show that you are seeking employment and have a genuine chance of being employed.


Permanent Residence


What is permanent residence?

EU/EEA nationals automatically acquire the right to permanent residence after 5 years continuous lawful residence in the UK. Once you have acquired permanent residence you no longer need to show that you are a ‘qualified person’, i.e. a worker, student, job seeker, self-employed, or are self-sufficient.


What if I leave the UK during that five year period?

Absences from the UK of up to six months do not break the continuous residence test, so holidays and short trips to visit family will not be taken into account. Also if you are absent for up to 12 months for ‘important reasons’ such as; serious illness, temporary posting for employment abroad, pregnancy and childbirth, study, or compulsory military service, this will not break the continuity - although the time away will not count towards the five years.


Do I have to apply for permanent residence?

No, you don’t have to apply to be granted permanent residence, you have it automatically after five years. But by applying for, and being granted, a certificate of permanent residence you can ‘prove’ that you have it. It costs £65 to apply for residency. So it may be advisable to apply in order to get official recognition of your status.


How do I establish that I have lived in the UK for five years?

There are lots of different forms of evidence to show you have resided in the UK for this time, such as; evidence of having worked or studied, contracts of employment, pay slips and P60s, student documents and qualifications, bank statements, rent agreements, mortgages, being registered with a GP, enrolling children at school, paying utility bills etc.

Guidance notes issued by the Government give details on the sort of information you will need to support your application.

Whether you intend to apply for permanent residence or not the most important thing to do is to gather evidence to prove your status.


I understand that I must show that I had comprehensive sickness insurance for the period when I was a student, what counts for this?

As a student (or someone who is a qualified person by being self-sufficient) you must show that you had some form of sickness insurance for the period of residence. A European Health Insurance Card (EHIC) issued by an EU/EEA member state (but not the UK) will usually count. Alternatively you would need evidence of full private medical insurance. Check the guidance document for more on this.


I have heard that the Home Office has a large backlog of applications for permanent residency and they are encouraging people not to apply, so I don’t know whether to apply or not?

Since the referendum, not surprisingly, there have been a large number of applications. So there is likely to be some delay in processing applications, but if you want to apply you should not let this put you off, as you have a right to apply for the certificate.

If the delay is excessive you might think about contacting your MP to chase the application for you. As we say above, the most important thing is to gather the proof that you have lived in the UK and met the conditions of being a worker, student, etc.


I have been working in the UK for less than five years, but have had to stop working because of permanent incapacity, can I apply for permanent residence?

There are some very limited circumstances where you can gain permanent residence without the full five years. This includes where you have been working but are permanently unable to work again and you are married to a British citizen or where you had an accident at work and are entitled to a UK pension. Seek more information if you think this applies to you.


Once I have the right to permanent residence can I lose it again?

At the moment this could only happen if you live abroad for two years or more, or if you commit a serious criminal offence and are subject to deportation.


Family members


What about my family?

Direct (close) family members of those who have a right to reside by being a ‘qualified person’, (a worker, self-employed etc), have an automatic right to reside in the UK, as long as they remain a family member.

This includes; a spouse, civil partner, children or grandchildren (under the age of 21), direct descendants over the age of 21 who are dependent on the EU/EEA national, parents or grandparents who are dependent on the EU/EEA national.


What does ‘dependent’ mean in these circumstances?

Dependence is not just financial support, but it must be ‘material’, providing necessities such as clothing, food and housing.


Do other members of the family have the right to reside?

There are also some rights for extended family members, such as; a sister or brother, cousin, aunt or uncle, niece or nephew, relative from a different generation, or a relative by marriage, but you should check the details for this as the rules are complex.


Are the rights of family members the same if the ‘qualified person’ is a student?

No the situation is more complicated for someone seeking to rely on being a family member of a student. You should seek specialist advice.


British citizenship


How can I become a British citizen?

Once you have permanent residence for five years, you need another complete year in the UK in order to be able to apply for British nationality. You should seek specialist advice on the implications of naturalizing as a British citizen.

Particularly you should seek advice before applying for citizenship if you have non-British dependents or family members, who are relying on your EU status to remain, as a change in your status could affect them.


And what about dual nationality?

You will need to check that your country allows for dual nationality with the UK. For example France and Ireland allow dual nationality, but not all countries do. Some countries, for example Germany allow dual nationality with other EU countries, so you need to check the precise terms.


What does it cost to apply for citizenship?

£1,282 for an adult and £973 for a child.


Indefinite leave to remain


What is indefinite leave to remain?

Indefinite leave to remain means that you can stay in the UK indefinitely with no immigration restrictions. This could only be taken away if you live abroad for two years or more, or if you commit a serious criminal offence and are subject to deportation. EU/EEA nationals cannot apply for 'indefinite leave to remain' as they would have permanent residency rights instead.

If you have indefinite leave to remain, this will not be impacted by Brexit.


The impact of Brexit on EU nationals


What do we know about how Brexit will affect the rights of EU nationals?

Your rights remain the same until the UK actually leaves the EU. However, there is still a good deal of uncertainty about the position after Brexit.


What is the government's latest stated position on this?

The joint report from the negotiators of the EU and UK Government issued on 8 December provides some clarity on the position post Brexit. This report represents the current expectations though it should be noted that the report is produced under the caveat ‘that nothing is agreed until everything is agreed’.

Prior to this December report the most significant government statements are the white paper published in March 2017 and the policy paper issued on 26 June 2017. The key message is that EU nationals who have five years’ lawful residence before the date we exit the EU will be able to apply for ‘settled status’. This will enable them to remain permanently in the UK (see more on this below).


What does the white paper say about rights for EU nationals?

The intention is that a Great Repeal Bill will repeal all EU legislation from the day we leave the EU, but create new laws, including a new immigration bill, at the same time.

The government's March 2017 white paper said:

“We will introduce an immigration bill so nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval. This is in line with our overall approach to the Great Repeal Bill – not to make major policy changes through or under the Bill, but to allow Parliament an opportunity to debate our future approach and give effect to that through separate bills. New legislation will be required to implement new policies or institutional arrangements that go beyond replicating current EU arrangements in UK law.”

So it seemed that people would be protected on day one, but there were no guarantees of what would happen after that. Since the white paper there have been on-going negotiations with the EU, where the position of EU nationals living in the UK, and UK nationals living in Europe, have been crucial in respect of reaching agreement to proceed with negotiations. So we now have a little more clarity, but not certainty, on the expected position.


The latest position – 8 December 2017


What is the position following the latest negotiations?

The joint report issued on 8 December 2017, as part of the negotiations between the EU27 and the UK, has given some clarity on the expected position post Brexit.

It is also helpful to look back at the earlier papers for more detail.

The government issued a policy paper ‘The UK’s exit from the EU: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU’ on 26 June 2017. The proposals at that stage were extremely sketchy. A further technical paper was issued on 7 November 2017, this was sent by the UK to the EU as part of the negotiations for Brexit. This gives more detail about the anticipated process for applying for the new settled status and says that it will be a streamlined and user friendly process.

The Q&As below reflect the latest position as agreed by the December joint report, but this is all subject to change and further negotiation with EU27.

 

Settled Status


Can you summarise the current proposals for EU nationals who have rights to permanent residency now?

All EU citizens in the UK who have the right to permanent residence before Brexit will need to apply for a new legal status in order to remain in the UK. This will be known as ‘settled status’.

Settled status will give you an indefinite right to remain in the UK, in the same way as non-EU migrants. But this can be lost if you leave the UK for a prolonged period and you would need to reapply for entry to the UK and no longer be able to rely on the principle of freedom of movement.

The December joint report states that those who acquired permanent residence rights under the agreement can be absent from the host state for up to five consecutive years without losing their residence rights. The agreement on a period of up to 5 years is welcome, as the earlier indications were that this would be two years.

Once you have settled status, and at least six years’ residence, you could then apply for British citizenship if you wanted to (see above).

 

Application process


What do we know about the new process to gain settled status?

Unlike permanent residency now, individuals must make a formal application to the Home Office. We are very concerned that existing rights will not be automatically recognised and that people will have to apply for, and be granted, the new status.

The joint report that was agreed in December states that those already holding a permanent residence document, issued under EU law, at the point of exit will have that document converted into the new document free of charge and subject only to verification of identity, a criminality and security check, and confirmation of ongoing residence. This is a welcome concession, but of course this will still require an application process and is subject to checks.

The Government’s paper issued on 7 November 2017 states that they are committed to ensuring that there will be a new ‘streamlined, user-friendly, digital application’ process. Prospect welcomes this commitment, but of course, it will depend on the detail of the new system and how it is applied in practice.

This is now included in the Joint Report in December, which states that procedures will be ‘transparent, smooth and streamlined’. It also states that the host state cannot require any more information than is ‘strictly necessary and proportionate to determine whether the criteria have been met’.

The cost of the application will not exceed the cost of a British passport (currently £72.50 or £85.50).

In assessing entitlement for settled status the Government has committed to taking a ‘pragmatic approach’. For example they say they will not check on whether comprehensive sickness insurance has been held by those who are not economically active or are studying and will not apply a genuine and effective work test (see above for more on these tests). They also state they will not seek to account for undocumented periods where they are satisfied that, overall, the residence requirements have been met.

Can I apply for settled status before exit day?

The November paper states that the Government is planning to set up a voluntary application process before exit day, so that people can apply for settled status in advance. This is all subject to reaching an agreement with EU27 in advance.

This voluntary scheme will apply alongside the existing rights of free movement until the UK finally exits the EU.

I’ve heard of a ‘grace period’ for EU nationals, so what happens immediately following Brexit?

There will be a ‘grace period’ of at least two years after the exit date when all EU nationals already living in the UK will have temporary residence rights, giving people time to make the applications for settled status (and for the Home Office to process them). The June policy paper says there will be a generic ‘umbrella’ of temporary leave to remain which will apply to all existing lawful EU residents.

We fear that two years may not be enough given the number of applications and the existing problems of administration and lack of resources.

The June paper was clear that EU nationals who fail to apply for settled status within the grace period will no longer have permission to stay in the UK. The November paper states that they will take a ‘proportionate approach’ to those who miss the deadline for application. The intention is that anyone who has applied before the deadline will continue to have rights to reside in the UK until the decision is made. The authorities will also consider exercising discretion to allow an ‘out of time’ application where they believe there were good reasons for not applying in time.

 

Cut off dates and new arrivals to the UK


Is there a cut-off date for gaining rights to stay?

It is now clear from the December joint report that the cut-off date will be the day of exit from the EU. This means that applications for settled status will be assessed on the position of the individual as at the date of withdrawal.

This is very welcome news as the June policy paper said that there would be a ‘specified date’ for residence in the UK which would be sometime after 29 March 2017 (the date Article 50 was triggered) and before the eventual date of exit from the EU. So it could have been retrospective.

Several press reports have suggested that the reason for the change of position is that, far from the Government’s original view that lots of EU nationals would move to the UK in order to apply for settled status post Brexit, there has been a very substantial decrease in people from EU27 states arriving in the UK and many EU Nationals leaving the UK since the Brexit vote.

 

What if an EU national becomes lawfully resident in the UK before the withdrawal date but has not gained five years’ residence?

Those who are resident (as a qualified person) before the exit date, but have not accrued five years’ continuous residence at the time of the UK’s exit, will be able to stay during the ‘grace period’. After this they will need to apply to the Home Office for temporary permission to stay in order to build up to five years’ residency. They will be able to apply for settled status once they have five years’ continuous residence (as above).

 

Family members post Brexit


Will family members be able to remain in the UK?

Direct family members (see above) who join a qualifying EU citizen before Brexit will be able to apply for settled status after five years’ continuous residency – even if part of the five years falls after the exit from the EU. The position for family members is very complicated, so seek advice.

What about family members seeking to join an EU national after Brexit?

The December joint report has provided some degree of clarity on this.

It is agreed that direct family members of an EU National, who has the right to reside in the UK, will be able to join them after the exit date, subject to the existing rules on family members (see above). This right will continue for the life time of the person who has the primary right to stay.

This will apply to direct family members who on the date of exit were related to the person they are seeking to join and they continue to be related at the point they wish to join them. Direct family members include; a spouse, civil partner, children or grandchildren (under the age of 21), and dependent parents or grandparents.

There will also be a right of entry and residence for partners of a qualifying EU National, as long as they are ‘in a durable relationship’ and the relationship existed prior to the withdrawal date and continues to exist at the point they wish to join the partner.

The joint report also provides rights for children born or adopted after the date of withdrawal, but this is dependent on the status or the parent(s).

The existing rules on this are complicated and it is likely to become more so, so seek specialist advice on this if this applies to you.

Enforcement of citizens’ rights

Currently the European Court of Justice (CJEU) is the highest court for interpretation of EU law.

The joint report in December confirms that the UK courts shall have ‘due regard’ to relevant decisions of the CJEU, after the exit date, in determining the rights of those seeking to rely on rights arising directly from the right to freedom of movement and the rights under the withdrawal agreement. There should be scope for UK courts to refer questions to the CJEU for determination, for a period of eight years.

It is also envisaged that the EU Commission would have the right to intervene in relevant cases before UK courts, and for the UK to intervene before the CJEU.

Pensions


Will the pension from the scheme offered by my employer still be payable in my home country if I choose to retire there (or in any other EU member state)?

 
Yes. There is no direct impact on your occupational pension, all the options currently available will still be available post Brexit.
 
Will my occupational pension be increased in line with inflation if I retire to my home country (or any other EU member state)?

Whatever the current rules on increasing this pension in retirement are, they will continue to apply after you retire even if you move to an EU member state post Brexit.
 
Will the UK state pension be payable and increased in line with inflation if I retire to my home country (or any other EU member state)?
 
It is common ground between the UK and EU negotiating teams that UK state pensions should be payable and increased in line with inflation in EU member states (and vice versa) post Brexit so this will almost certainly be the case.
 
Will years spent living / working in EU member states count towards the minimum qualifying threshold for a UK state pension (and vice versa)?
 
The UK’s negotiating position is that relevant periods before Brexit will count towards meeting the entitlement conditions for the UK state pension. This would fully protect EU nationals who have already moved to the UK (but would increasingly act as a barrier to movement between the UK and EU in the future). The EU’s negotiating position is that all periods (before or after Brexit) should count (ie there should be no change from the current position). The UK is reflecting on its position. There is no certainty regarding the outcome on this issue yet.

What to do now


How can I protect my right to stay in the UK?

At the moment, the only sure way of doing this would be to become a British citizen, but you need to consider the implications of this in terms of the right to nationality in your EU country and the effect on family members or other dependents.

You should ensure that you and your family members have complete evidence of having lived in the UK and meet the qualifying conditions for permanent residence.

You may want to apply for a certificate of permanent residence under the current rules. The government says there is no need to apply for permanent residence now and seem to be discouraging applications. But you do have a legal right to apply and it would be a way of formally recognising existing rights.

The June policy paper states that they are planning to set up the application process for settled status before Brexit. Whether this is practicable remains to be seen, as the current proposals are simply the government’s position in negotiations with the EU over Brexit.


Seeking further advice


Where can I get specialised advice about my personal circumstances?

There are lots of options:

  • A good starting point would be to see if there is a law centre that covers the area where you live or work. Law centres can offer free advice and will usually have specialist immigration advisers. To see if there is a centre near you try – lawcentres.org.uk/i-am-looking-for-advice
  • Alternatively check for a local Citizens Advice, they may be able to help or at least will be able to suggest local lawyers –  citizensadvice.org.uk
  • The Immigration Law Practitioners Association is a network of immigration lawyers working throughout the UK and they have a list of their members on their website where you can search for local solicitors. They also have lots of general information at ilpa.org.uk
  • You can also check the Law Society’s web site for solicitors who specialise in immigration lawsociety.org.uk

If you are phoning law firms for advice, always check what their fees will be and see if they will be prepared to give initial advice for free (many will offer a 30 minute call or interview without charging).